Suspect’s age delays trial in Ertell case

Court takes time considering if teen suspect is adult

It will be more than a year after a 51-year-old woman's body was found at her Ewa Beach home that a Family Court judge will decide whether a teenage neighbor should be tried as a juvenile or as an adult on charges of raping and murdering her.

Karen Ertell:
A teenage neighbor is charged in her death last year

The youth, 15 at the time, faces charges of sexually assaulting and murdering Karen Ertell on May 25 last year.

A Family Court hearing for the teenager had been scheduled for last Tuesday, but was postponed until June 10.

Kevin Callahan, Ertell's boyfriend, expressed frustration at the latest in a series of postponements, but the youth's lawyer suggests that a careful consideration of the case is in everyone's interest.

A decision won't be made by the Family Court until June at the earliest on whether a teenager should be tried as an adult on charges of raping and murdering his 51-year-old Ewa Beach neighbor nearly a year ago.

A hearing on whether the boy should be treated as an adult was postponed from last week until June 10 as the prosecution and defense wrestle with the key issue of whether the youth suffers from a mental illness that would keep the case in juvenile court.

The boy is charged with sexual assault and first-degree murder of Karen Ertell, who owned a coffee business in Kakaako. Her body was found at her home the afternoon of May 25. The boy, 15 at the time, lived on the same street in the quiet Ewa Beach neighborhood.

He was arrested the following night.

"It's just the most frustrating thing," Kevin Callahan, Ertell's boyfriend, said last week after the latest in a series of postponements. "We go through another day of emotional torment."

The boy's court-appointed lawyer Jeffrey Hawk declined to comment except to remark about the length of time.

"We are trying to do the case as carefully and expeditiously as possible, and I think that's in everybody's best interest," he said.

His client remains in custody.

Jim Fulton, aide to the city prosecutor, said he could not comment on the case because of confidentiality rules.

The decision on which court will handle the prosecution is highly significant.

If found to have violated the law in Family Court confidential hearings, the boy could be held until age 19. If convicted of first-degree murder in adult court, which is open to the public, he would face a mandatory life term without parole, the state's harshest sentence.

The pivotal issue facing the court is the youth's mental condition. According to state law, the judge may send the youth to adult court if "there is no evidence" that the youth can be committed to a mental institution.

Those close to the proceedings who do not want to be named because the case is confidential said the latest postponement was to give the prosecution a chance to have an expert evaluate the youth and report on his mental condition.

The defense already has presented evidence suggesting the boy suffers from mental problems.

Family Court Circuit Judge Frances Wong must eventually rule on whether any mental condition is enough to keep the boy in Family Court. It's not clear whether Wong will rule on June 10 or set further hearings before rendering a decision.

Legal observers have pointed out that it will be highly difficult for the defense to convince the Family Court that the youth should be treated as a juvenile, even though he was 15 when the offenses were committed.

Family Court judges have generally approved waiver requests in juvenile murder cases and sent them to adult court. Since 1997, prosecutors sought and obtained waivers to try minors as adults on murder charges in nine cases, according to the state judiciary.

The only Oahu case in which a waiver in a murder case was rejected involved a juvenile charged with murder in a 2000 beating case, according to the youth's lawyer, Keith Shigetomi. The boy was later found guilty in Family Court of a lesser charge, the lawyer said.

Two men were also charged with murder as adults in the beating, but entered plea agreements to lesser assault charges, according to the court file.

One Big Island case suggests that there also may be ways to have the youth tried as an adult even though he suffers from mental illness.

Mark Davis Jr. was 14 when he was charged in Family Court with sexually assaulting and murdering a 6-year-old girl in 2001. Although he suffered significant mental problems, he waived the Family Court's jurisdiction over him. Then, as a result of an agreement with prosecutors, he was acquitted by reason of insanity by a Big Island judge in 2005 and committed to the Hawaii State Hospital.

Davis remains in a secured mental health facility.

Ertell's case also prompted state Rep. Kimberly Pine (R, Ewa Beach-Iroquois Point) to introduce a bill this session that required youths aged 15 to 17 to be tried as adults if charged with first-degree murder. The measure would not have applied to the youth in the Ertell's case, but Pine maintained other relatives and friends in future cases should not have to suffer not knowing whether the teenager will be tried as an adult.

Pine said last week the bill died when Tommy Waters (D, Lanikai-Waimanalo), chairman of the House Judiciary Committee, did not hold a hearing on the measure.

Waters said he thought there should be more discussion rather than a "rush to judgment to change the law." He cited the nine waivers granted Oahu prosecutors in the past 10 years. "The system appears to be working," he said.

JUVENILE MURDER CASES

The Family Court may waive jurisdiction and order a juvenile tried as an adult if:

» The juvenile, under age 18, is charged with first-degree murder, and;

» "There is no evidence the person is committable to an institution for the mentally defective or retarded or mentally ill."

If found guilty in Family Court of a first-degree murder, the juvenile can be held at the Hawaii Youth Correctional Facility in Kailua until age 19.

But if found guilty in adult court of first-degree murder, the juvenile would face a mandatory life term without parole, the state's harshest sentence.